Court rejects retaliation claim of professor who denies writing anonymous letters

Tuesday, February 22, 2000

A California junior college professor cannot maintain a First Amendment retaliation lawsuit alleging a violation of her free-speech rights if she denies authorship of the speech in question, a federal appeals court has ruled.

Sylvia Wasson, a professor in the Sonoma County Junior College District, was placed on forced administrative leave after District President Robert Agrella and District Vice President John Roberts determined that she had written five letters and one flier that criticized Agrella.

Even though the letters and flier accusing him of various types of misconduct were anonymous, Agrella suspected Wasson of writing them. The letters were distributed from August 1995 to October 1996.

After a handwriting expert confirmed that Wasson was the likely author, Roberts recommended to the board in January 1997 that she be terminated. The next day, the board issued a notice of dismissal.

Wasson was placed on paid leave pending an administrative appeal. However, in March 1997, the board withdrew its notice of decision to dismiss and reinstated Wasson as an instructor.

Even though Wasson currently remains an instructor in the district, she sued in 1997 in federal court contending that the actions of the defendants had violated her First Amendment free-speech rights. She noted that the board is free to terminate her at any time until Oct. 28, 2000, by reinstating its notice of decision to dismiss.

Later in 1997, U.S. District Judge William H. Orrick Jr. dismissed the lawsuit, finding that the defendants had qualified immunity. In a civil rights lawsuit, defendants are entitled to a qualified-immunity defense if they did not violate a clearly established constitutional right.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed 2-1 with Orrick in Wasson v. Sonoma County. The 9th Circuit majority, however, reached its decision on different grounds. Instead of dismissing the lawsuit because of immunity, the appeals court majority ruled that Wasson could not file a First Amendment retaliation lawsuit because she alleges she was not the author of the anonymous documents.

Judge Mary M. Schroeder wrote for the majority: “Several of our sister circuits have rejected claims identical to Wasson’s, holding that there can be no First Amendment cause of action where there was no speech by the plaintiff.

“A First Amendment case is not a wrongful termination case,” Schroeder wrote. “Accordingly, there can be no First Amendment claim when an employee is falsely accused of making statements uttered by someone else.”

Wasson argued that she had standing to bring the suit because she is defending the free-speech rights of the anonymous author of the letters.

Schroeder and Judge Cynthia Holcomb Hall noted that the First Amendment protects anonymous speech. However, they said, a litigant does not have standing to bring a lawsuit to protect the rights of others unless the litigant has a close relationship to the third party. Wasson failed to meet this requirement, the appeals court wrote, “because she has established no relationship between herself and the anonymous author.”

Judge Betty Fletcher dissented, finding that the majority’s opinion would have a “chilling effect” on other individuals who might wish to speak anonymously.

“I cannot join the majority in holding that the protection provided by the First Amendment does not extend to Wasson, an individual who has been targeted and punished for allegedly uttering anonymous speech on the grounds that she denies making the statements at issue,” Fletcher wrote.

Calls to the attorneys on both sides of the case were not returned.